Monday, 13 January 2020

Indictments in the Early 19th Century


This was originally going to be a bonus addendum to a previous article, but I decided it was overlong so promoted it to its own (then it got delayed because things). So, this can be seen as simply as bonus extra blog post.

Well, it was going to be a bonus, then it kept growing because I kept finding interesting things in Hale [0]...

Anyway, what was going to follow was a comparison between a modern indictment and an historical one. And it still is that, just now it also discusses why things were in the older, more prolix, indictments. Mostly because they are amazingly detailed.

Modern Times

In the modern criminal justice system, at least since the Indictments Act 1915 [1], indictments are quite short. For example, an indictment for murder might today (the Schedule to that Act being repealed by the Indictments (Procedure) Rules 1971 [2], itself being repealed by the Criminal Procedure (Amendment) Rules 2007 [3]) be as simple as

INDICTMENT  
IN THE CROWN COURT AT BORSETSHIRE 
THE QUEEN VS. A. NASTY CRIMINAL
charged as follows: 
STATEMENT OF OFFENCE 
Murder. 
PARTICULARS OF OFFENCE 
A. N. Criminal, on the 9th day of November 2019, murdered A. Poor Victim.
Pithy.

It wasn't always so. I happen to have a PDF first edition of Archbold (thanks Google Books!), and the old form of indictments was especially prolix. Apparently they were shortened somewhat during the 19th century before arriving at the highly terse form above in 1915.

Murder

I thought a sample would be best. This one will find on p. 210-11 of Archbold (1822) [4]

Middlesex to wit : 
The jurors for our Lord the King, upon their oath present, that J.S., late of the parish of B., in the county of M., labourer, not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil, on the third day of May, in the third year of the reign of our sovereign lord George the Fourth, with force and arms, at the parish aforesaid, in the county aforesaid, in and upon one J.N., in the peace of God and our said Lord the King then and there being, feloniously, wilfully, and of his malice aforethought, did make an assault ;  
and that the said J.S., with a certain knife, of the value of six pence, which he the said J.S. in his right hand then and there had and held, the said J.N., in and upon the left side of the belly, between the short ribs of him the said J.N., then and there feloniously, wilfully, and of his malice aforethought, did strike and thrust, giving to the said J.N. then and there, with the knife aforesaid, in and upon the said left side of the belly, between the short ribs of him the said J.N. one mortal wound, of the breadth of three inches, and of the depth of six inches ;  
of which said mortal wound, the said J.N., from the said third day of May, in the year aforesaid, until the fifteenth day of the same month of county aforesaid, did languish, and languishing did live ;  
on which said third day of May, in the year aforesaid, the said J.N., at the parish aforesaid, in the county aforesaid, of the said mortal wound died : 
and so the jurors aforesaid, upon their oath aforesaid, do say, that the said J.S. the said J.N., in manner and form aforesaid, feloniously, wilfully, and of his malice aforethought, did kill and murder: against the peace of our lord the King, his Crown and dignity.
I've broken this into paragraphs to aid our own reading of it, but in its day this would have been one continuous block of text.

Even a quick skim indicates two things: one, it is quite florid; two, it explains the entire factual basis of the crime, from who is who, through to how the mortal wound was inflicted and by what implement, through to how death occurred. So it's not all noise. There is a fuller explanation on p. 211 et seq. of Archbold, but here are some interesting bits, in my opinion.
not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil
It is important to remember that it was not until the latter half of the nineteenth century that religion in England came to be even somewhat detached from the state; so this almost mediaeval invocation needs to be seen in that light. A similar practice seems to have prevailed in the State of New York as late as 1804, as this indictment of Aaron Burr attests to, and the same seems to have been the case in the State of New Jersey. A fuller exposition on the role of the 'devil' in crimes in England until the mid-nineteenth century can be seen in this insightful article by Owen Davies, which seems to imply that this invocation was part an attempt at mitigation (no person not so possessed could do such a thing), and partly rooted in a desire to personify the perceived evil. But I'm not an anthropologist, so that's something for other people to be vexed by.
late of the parish of B., in the county of M. [...] at the parish aforesaid, in the county aforesaid
The rules on venue, which I alluded to in the previous article, would strongly imply that "M." here is standing for Middlesex, given that it is the Middlesex Grand Jury preferring the bill of indictment.
in the peace of God and our said Lord the King
This simple looking phrase is surprisingly important. Archbold notes that proof of the King's peace is not required, but that killing an alien in time of conflict might well reduce the charge to manslaughter (or even eliminate it all together). But, and I quote directly "it is no matter either of excuse or justification, that the deceased was a Jew, an outlaw, or one attainted of felony or præmunire" [5]. In other words, killings in time of war are lawful, but vigilante action is not.
with a certain knife
Archbold notes that it doesn't matter if it was not exactly this knife, any cutting implement will do, but that indicting for a knife then trying to prove death by poison will not work (bludgeoning will, however, and I never promised any of this made sense).
 of the value of six pence
You would be correct in wondering what the value of the knife has to do with it all, and Archbold agrees with your confusion. He posits that it dates back to the rule that a murder weapon was forfeit "as a deodand" to the King, and that if it went AWOL the local population would have to make good its value. He cites as authority for this point page 185 of volume 2 of Hale's Historia Placitorum Coronæ, where one finds the same text provided without any further authority. Hale does take the time to note that including the price "seems not to be essential to the indictment" [6]. Glad we cleared that up...
in his right hand
Archbold says it is necessary to allege this but not prove it, but I note that what he cites for authority in Hale (assuming I'm groking the Latin correctly) hints that indictments have been quashed for errors here.
 in and upon the left side of the belly, between the short ribs of him
Here I must say I find both Archbold and Hale hopelessly confusing. What I take from their comments is that it was essential to allege with precision what the mortal injury was, but that it was not quite essential to be correct about it. I.e. saying "an arm" would be a bad indictment, but saying "left arm" when it was actually the "right leg" might be ok.

It is important to remember that before the rules on indictments were reformed, several centuries of uncodified precedents had simply accreted, which accounts for a lot of this confusion and general oddness.
feloniously, wilfully, and of his malice aforethought
Nothing seems to turn on 'feloniously' (but see Petit Treason below), but 'his malice aforethought' is the crucial ingredient in the offence of murder and remains so to this day. An indictment without those three words would in effect be an indictment for Common Law manslaughter [7], and likewise a defendant who proved a lack of malice would be acquitted of murder (but not necessarily manslaughter). This remains the case to this day.  I suppose 'wilfully' is necessary because a felon non compos mentis would be found not guilty but insane.
one mortal wound of the breadth of three inches, and of the depth of six inches
Both Archbold and Hale agree that the size of the wound must be stated (although not necessarily proved), except in the case of an arm (or one assumes leg?) being cut off. [8] The wound must obviously be mortal, since otherwise this is just a nasty assault (and in the same way as proving that J.N. was not actually J.N., it would be a defence to prove that J.N. was J.N. but that he remained very much alive).
did languish, and languishing did live
The indictment now, rather morbidly, sets out how long it took the victim to die. But this is important since if the defence can prove that mortality occurred more than a year and a day after the 'mortal' wound was inflicted, the law will irrebutably assume no causation. The 'year and a day' rule was only abolished in 1996 [9], but was a necessary expedient in earlier times due to the reduced level of medical knowledge and understanding.
against the peace of our lord the King, his Crown and dignity
This was at the time the traditional ending of many indictments (specifically for the Common Law offences), and echoes the point about the King's peace above, and reiterates that as the fount of justice all offences are ultimately against the King and His peace.

That turned out to take longer to explain that I expected. Anyway, on to Treason.

Petit Treason

Petit Treason was the killing of one's lawful superior. The only example given in Archbold is of a wife killing her husband (the nineteenth century was somewhat less enlightened, after all the concept of a femme covert had yet to be abolished, although Petit Treason would be assimilated to murder in 1828). The indictment looks the same, with some verbiage about J.S. being J.N.'s (wait that doesn't make sense... run with it!) wife and the addition of the word 'tratoriously' into 'feloniously, wilfully, and of her malice aforethought'.

High Treason

Specifically 'compassing or imagining the death of the King', contrary to 25 Edw. III St. 5. cap. 2, aka the Treason Act 1351 (still in force today, by the way).

Middlesex to wit: 
The jurors for our Lord the King upon their oath present, that J.S. late of the parish of B. in the county of M., labourer, a subject of our said lord the King then and there being, not regarding the duty of his allegiance, nor having the fear of God in his heart, but being moved and seduced by the instigation of the devil, as a false traitor against our said lord the King, and wholly withdrawing the allegiance, of our said lord the King, should, and of right ought to bear towards our said lord the King, 
on the third day of May, in the third year of the reign of our sovereign Lord George the fourth, and on divers other days as well before as after, with force and arms, at the parish aforesaid in the county aforesaid, maliciously and traitorously, together with divers other false traitors to the jurors aforesaid unknown, did compass, imagine, devise, and intend to depose our said Lord the King from the royal state, title, power, and government of this realm, and from the style, honour, and kingly name of the Imperial Crown thereof, and to bring and put our said Lord the King to death : 
and the said treasonable compassing, imagination, device, and intention, then and there maliciously and traitorously did express, utter, declare, and evince, by divers overt acts and deeds hereinafter mentioned, that is to say : in order to FULFIL, PERFECT, AND BRING TO EFFECT his most evil and wicked treason, and treasonable compassing, imagination, device, and intention aforesaid, he the said J.S., as such false traitor as aforesaid afterwards, to wit, on the said third day of May in the year aforesaid, and on divers other days as well before as after, with force and arms, at the parish aforesaid in the county aforesaid, maliciously and traitorously did conspire, consult, consent, and agree with one A B., C.D., and divers other false traitors to the jurors aforesaid unknown, to raise, levy, and make insurrection, rebellion, and war within this kingdom, against our said lord the King : 
and further to FULFIL, PERFECT, AND BRING TO EFFECT his most evil and wicked treason, and treasonable compassing, imagination, device, and intention aforesaid, he the said J.S., as such false traitor as aforesaid, afterwards, to wit, 
[&c. &c. so proceeding to state other overt acts, in the same manner ; and then conclude the count thus:] 
in contempt of our said lord the King and his laws, to the evil example of all others in the like case offending, contrary to the duty of the allegiance of him the said J.S., against the form of the statute in such case made and provided, and against the peace of our lord the King, his crown and dignity. 
[capitals as original] 
At a first glance this is structurally similar to the indictment for murder, and once a lot of the prolix verbiage is removed one can fit Sir Roger Casement's indictment to it as well. Let's look at some differences.
a subject of our said lord the King then and there being, not regarding the duty of his allegiance,
Those who know about the trial of William Joyce ("Lord Haw Haw") will appreciate the important of this. It has been held that a subject always owes allegiance, hence if one is one, it would be stated, but that an alien would only allegiance under certain circumstances [10]. This does disclose an essential element of the crime of treason, however, viz. the failure of a subject or alien [11] owing allegiance to do his right by his King as in duty bound, cf.  this next bit
as a false traitor against our said lord the King, and wholly withdrawing the allegiance, of our said lord the King, should, and of right ought to bear towards our said lord the King
did compass, imagine, devise, and intend to depose our said lord the King from the royal state, title, power, and government of this realm, and from the style, honour, and kingly name of the imperial crown thereof, and to bring and put our said lord the King to death
This is the key ingredient of the offence (well, offences, but they are going to be functionally linked in practice) from the 1351 Act. Specifically, the Act provides that it be Treason if "a Man doth compass or imagine the Death of our Lord the King". Now, this let's me bring up one of my favourite asides about the law of treason. The astute observer will notice that while the 1351 Act makes criminal the conspiracy (for want of a better word, it could just be one man alone), the actual act of killing a monarch itself is a bit ambiguous. This presented a small quandary when it came to try the Regicides after the restoration of Charles II: could the actual death of the King be one of the overt acts (more on those in a minute). At page 8 of his Reports, Sir John Kelyng records that it was decided that it could be, and that it would be supported by further overt acts making out the overall charge,

A more interesting quandary concerns accidental injuries (or killings) of Kings. Hale [12] records without authority that an accidental injury is not compassing the death of the King, and then cites the supposed case of Walter Tirrel [12B] (sic. though the conventional spelling today seems to be Tirel) who may, or may not, depending on who you ask have accidentally shot William II with an arrow.

I suspect this next bit, viz. the part ending
to raise, levy, and make insurrection, rebellion, and war within this kingdom, against our said lord the King
would be unnecessary unless a charge of High Treason for both compassing death of the King and also waging war against Him in the Realm was being brought. That being said, Hale at vol. 1 p. 123 notes that levying war, etc., because one doing so can not know that the King will not be harmed is ipso facto an overt act compassing or imagining His death. Although how one squares this with the rule expressed by Archbold that evidence must be brought to prove the overt acts not the principle treason itself I'm unclear on. And luckily it is not something I will ever have cause to decide.

Hale [13] notes also that it is compassing the death of the King to imprison him until he changes his counsels, providing such restraint or imprisonment is done forcibly. This follows similar logic that once forcibly restrained or detained the safety of the King could no longer be guaranteed. This would seem to be still good law (or at least I can't find anything to say it isn't)

Now, the part in square brackets was important (and we saw this in Sir Roger Casement's indictment too, where I lazily omitted it),
[&c. &c. so proceeding to state other overt acts, in the same manner ; and then conclude the count thus:]
It has been held necessary (we ignore the two-witnesses rule since, for the form of an indictment, it changes nothing) to prove at least one, but not more than one, 'overt act' relating to the principle treason. These would be listed, in some detail, here.
in contempt of our said lord the King and his laws
I think this is now just laying things on a bit, as is
to the evil example of all others in the like case offending
We then see, in a roundabout way, the 1351 Act cited
  against the form of the statute in such case made and provided
and the customary ending clause
  against the peace of our Lord the King, his crown and dignity

So, just as for murder, the indictment for high treason covers all the parts of the case — it is not merely a quick summary.

Colophon

Archbold, heavily quoted here, is obviously in the Public Domain.

[0] Historia Placitorum Coronæ ("History of the Pleas of the Crown") by Sir Matthew Hale SL, a Judge of the Commons Pleas; then Lord Chief Baron of the Exchequer; then Lord Chief Justice of the King's Bench; so as well as writing a seminal treatise on criminal pleading, he also served in all three Common Law courts. Footnote zero because I added this last when I noticed I had forgotten it. Historia Placitorum Coronæ is hereafter Hale.
[1] 5 & 6 Geo. V. cap. 90
[2] SI 1971/<something>, I forget what and it isn't on legislation.gov.uk
[3] SI 2007/699 (L.3), but nothing really turns on all this
[4] "A Summary of the Law Relative to Pleading and Evidence in Criminal Cases; with precedents of indictments, &c., and the evidence necessary to support them." by John Frederick Archbold, still updated and published today as Archbold Criminal Pleading, Evidence and Practice; hereafter Archbold (all references to the first edition)
[5] Archbold, p. 211
[6] Hale vol. 2, p. 185 (I know the legal convention is to cite this as 2 Hale 185, but that makes it look too much like a New Testament epistle, so let's not do that)
[7] Not manslaughter under the Act 1 Jac. I. cap. 8; which if you know what I'm on about you will understand.
[8] Hale at v. 2 p. 186 cites 'Haydon's Case' (not Heydon's case, 3 Co. Rep. 7A, that's something quite else) as authority for this oddly specific point, as does Blackstone in a footnote on about vol. 2 p. 149 of Commentaries; both referring to 5 Co. Rep. 42, which I would check in Coke but even I get bored of this eventually. (Co. Rep. being Coke's Reports, which unlike Hale I've left in the conventional citation form due to laziness)
[9] Law Reform (Year and a Day Rule) Act 1996
[10] See Hale, vol. 1, pp. 96-100ish
[11] I note a curious reference to how this concept could work at p. 100 of Hale, where he cites 40 Ass. 25; which I take to be a reference to something in the Liber Assissarum. Hints/links/copies welcome!
[12] Hale, vol. 1, p. 109
[12B] I wonder if he is a relation to ever brilliant Sophie?
[13] ibid., citing Blackstone's Commentaries, vol. 4, p. 79

Monday, 30 December 2019

Private Legislation, Part the Second


This is part two, following on from a previous article. You will want to read that first, and note that when I said the follow-up would be on Monday, I really meant a week Monday [0].

When we finished, our putative bill (which for some reason has attracted the ire of a mill owner on a nearby stream, as our example petitioner against it) had just been committed to an Opposed Bill Committee, and we're going to assume that the Court of Referees have decided the mill owner has locus standi.

Here, we will make it as far as the conclusion of the Third Reading of the bill in the first House (which I generally assume to be the Commons out of a desire to keep this missive as un-prolix as possible!). The final (hopefully) instalment will cover the slight differences on arrival in the second House, how disputes between the Houses are managed, and a variety of overarching ideas that have been intentionally omitted thus far [1].

Opposed Bills Committees (take three... ish)

So, we have our Bill Committee, and before lies our bill and the petition of a mill owner. Now, our party opponent [2] can either oppose the whole bill, or specified clauses [3].

Now, as usual we come to a private legislation procedure peculiarity (and this is, as anyone who has read the first article will know, actually a fairly anodyne one), viz. Standing Order 177 [4] appears to say a Committee can sit after six days notice, i.e.
There shall be an interval of not less than six clear days between the committal of an opposed private bill and the sitting of the committee thereon, except that, in the case of an opposed personal bill, the interval shall be not less than three clear days.
However, HM Government have to be given an opportunity to report on the bill, such reports standing referred to the Committee by Standing Order 144
(1)  All reports upon a private bill, or its objects, which are-
(a)  made by a minister of the Crown, and 
(b)  presented to the House by being deposited in the Private Bill Office, shall stand referred to the committee on the bill.
(2)  Where a recommendation is made in any such report, the committee-
(a)  may, if it thinks fit, hear a person nominated by the minister in explanation of the recommendation, and
(b)  shall note the recommendation in its report and, if it does not agree to such recommendation shall state its reasons for dissenting.
(paragraph (2) there is an important deviation from a general rule which we will consider in a moment). Erskine May [5] notes that fourteen days should be allowed for this (though this isn't technically mandatory). More important, however, is Standing Order 158, viz.
In the case of any bill containing provisions whereby it is proposed-
(a)  to direct any application of the property of any charity, or to affect the patronage or the constitution of any charity, or the right of any charity to any property; or,
(b)  to set up, or to take power to set up, or to take over or interfere in the management of, any school or other educational foundation or institution, or to levy any rate or raise money for any such purpose,
notice in writing of the bill shall be given to the Attorney General, and no such bill shall be taken into consideration by the committee on the bill until a report from the Attorney General on the bill has been presented to the House (by being deposited in the Private Bill Office).
It would seem that that notice is not actually required to be sent at the time all the other ones are (except insofar as the Attorney-General is on the list of government departments to be informed) but it is not in order for a Committee to proceed without his report.

As an aside, we note that the ministerial report on human rights compliance required by Standing Order 169A needs to be submitted much earlier, by the second day after First Reading. No doubt to ensure the House is fully informed when reading the bill a Second Time.

The procedure when we do actually get to a sitting of the Committee is somewhat akin to a judicial proceeding. Petitioners both for and against the bill have the right to be heard, either by Agents [6], counsel [7], or propria personai [8]. Where a petitioner has prayed against the preamble, evidence needs to be led from witnesses to prove the need for the bill, etc., and those witnesses can be cross-examined by the petitioners and then re-examined by the promoters, and the petitioners themselves can lead witnesses. The same applies for petitions against clauses [9]. Witnesses are heard on oath, as provided for by the Parliamentary Witnesses Oaths Act 1871, and Opposed Bill Committees still regularly use this power unlike most other Commons Committees. For reasons that defeat me, the equivalent power for Lords Committees is contained in the Parliamentary Witnesses Act 1858.

Broadly, the Committee regulates its own procedure and orders proceedings in whatever is the most convenient way. For example, the Select Committees on various parts of HS2 and Crossrail would normally consider petitions not in the order presented (nor in how they related to the strict text of the bill) but instead by their geographical location, systematically working their way along the proposed railway line. However, one important limitation is provided by Standing Order 136 (which we noted Standing Order 144 slightly modifies)
A committee on a private bill shall not, without express authority from the House, receive evidence other than that which may be adduced by or on behalf of any parties entitled to be heard.
That is the Committee can not call witnesses of its own, nor admit what would be in effect an amicus curiae brief.

Further, having now advanced beyond that stage (this being the preserve of the Examiners), the Committee are prohibited by Standing Order 139
A committee on a private bill shall not examine into the compliance or non-compliance with Standing Order 4 (Contents of notice) to 68 (Proof of consent of directors, etc., who are named in bill).
from enquiring into whether all the various notices and consents have been dealt with. In effect this is to stop people having multiple "bites at the cherry".

This being done, the Committee will need to sit in private to decide the petition. It has the option of deciding that as a result of it [10] the preamble is "not proved". This effectively kills the bill unless (and this is quite rare) the House recommits it to have the preamble reconsidered. Indeed, this very action was attempted - and defeated - when the first attempt at Crossrail was nixed this way.

Or it can make amendments. These might come from the promoters themselves, perhaps as a result of a private agreement, or from the Committee. Or, finally, the Committee might accept an "undertaking" from the promoters in favour of the petitioners [11], on which the petitioners have agreed to withdraw their petition [12].

Having done all this, one final matter has to be done: the preamble needs to be proved. This is done by putting some proper official of the promoters on oath and asking him to prove it is true, e.g. as was done for the wonderfully esoteric Faversham Oyster Company Fisheries Bill in the Lords Unopposed Bill "Committee" in 2016 [13]
90. MR ALASTAIR LEWIS: All I need to do now is go through the formalities as it were, and ask Mr Cramp to swear the preamble.
91. MR DUDLEY CRAMP: I swear by almighty God that the evidence I shall give before this Committee shall be the truth, the whole truth and nothing but the truth, so help me God.
92. MR ALASTAIR LEWIS: Is your name Dudley William Cramp?
93. MR DUDLEY CRAMP: Yes, it is
94. MR ALASTAIR LEWIS: Are you the Company Secretary of the Faversham Oyster Fishery Company, the promoter of this Bill?
95. MR DUDLEY CRAMP: I am.
96. MR ALASTAIR LEWIS: Have you read the preamble to this Bill?
97. MR DUDLEY CRAMP: I have
98. MR ALASTAIR LEWIS: Is it true?
99. MR DUDLEY CRAMP: Yes.
100.MR ALASTAIR LEWIS: Thank you, my Lord.
101.THE CHAIRMAN: Thank you. That concludes our proceedings and I will report the Bill to the House with amendments.
102.MR ALASTAIR LEWIS: Thank you very much, my Lord.

Report of the Committee

The Lords Standing Orders contain somewhat less stringent monitions on the chairman of the Committee when reporting the bill compared to the Commons ones, but the underlying principles are identical.

The Committee must in some sense report the bill [14], and may additionally make one or more "Special Reports". 

First, complete minutes must be produced (indeed, these are produced on an on-going basis normally) by Standing Order 138, by the Clerk, thusly
The clerk attending a committee on a private bill shall enter on the minutes of the proceedings of the committee the names of the members attending the committee, and, if any division takes place in the committee, the names of members voting in such division, distinguishing on which side of the question they respectively vote.
Then by Standing Order 141, the Chairman of the Committee (which for an Unopposed Bill would be the Chairman of Ways and Means himself) must cause, in manuscript, the committee amendments on the bill to be interlined, sign the whole thing, and lay it before the House, viz.
The chairman of a committee on a private bill shall sign, with his name at length, a printed copy of the bill (to be called the committee bill), on which the amendments made in the committee are to be fairly written; and also sign, with the initials of his name, the several clauses added in the committee.
A strict reading of the Standing Orders implies this ought to happen even if the committee find the preamble not proved, but that seems entirely pointless to me and I suspect doesn't happen. Then, by Standing Order 142,

(1)  Unless the parties promoting the bill have informed the committee that it is not their intention to proceed with the bill, the chairman of a committee on a private bill, when reporting the bill to the House, shall report whether the allegations of the bill have been found to be true.
I.e. the Chairman must specifically report the Committee's findings on the proof of the preamble;
(2)  Where any alteration has been made in the preamble of the bill, the chairman shall report such alteration, together with the grounds of making it, and shall report whether the allegations contained in the preamble of the bill, as amended, have been found to be true.
And any changes thereto, e.g. the elimination of an element by virtue of a clause being omitted or modified on amendment must be especially reported; and
(3)  Where the parties promoting the bill have informed the committee that it is not their intention to proceed with the bill, the chairman shall report to the House accordingly when reporting the bill.
Where the promoters, but not the Committee, have pulled the bill, the House must be informed of this eventuality too.

The minutes as required to made up are laid with the bill by Standing Order 145,
The minutes of the proceedings of a committee on a private bill shall be brought up and laid on the Table of the House, with any report of the bill.
and any evidence by Standing Order 145A (e.g. those ministerial reports noted earlier, or an affidavit supporting a contentious element of the preamble, or similar)
The minutes of the evidence taken before a committee on a private bill shall be laid on the Table of the House and ordered to be published.
Progress! In the event the bill is to re-committed for any reason, an obvious example being where the promoters have entered into more negotiations and wish to make further amendments to reflect those, broadly the same procedure is followed again (though one assumes there will be vastly fewer provisions). The procedure called a "Petition for Additional Provision", which is in effect a more complete version of this procedure, we will worry about infra.

The next stage in the Commons would be Consideration (aka Report Stage); there being no Consideration of Private Bills in the Lords the Lord Chairman is instead given a power to commit Private Bills to the Committee of the Whole House if necessary by (Lords) Standing Order 94
The Chairman of Committees may, if he thinks fit, propose to the House that any private bill shall, after it has been reported, be re-committed to a Committee of the Whole House. But no private bill re-committed to a Committee of the Whole House under this standing order shall by reason of such re-commitment be allowed to proceed as a public bill.

Consideration

On the assumption that no attempt to recommit your bill has been attempted, it will be set down for Consideration in the Commons [15] not less than three clear days later per Standing Order 181,
In the case of a private bill ordered to lie upon the table, there shall be an interval of not less than three clear days between the report and the consideration of the bill, and, where any bill does not contain the several provisions required by the standing orders or contains any provisions which contravene standing orders, the Chairman of Ways and Means shall, before the consideration of the bill takes place, so inform the House or signify the same in writing to the Speaker.
I haven't got the foggiest how a bill could make it this far and still not comply with the Standing Orders, but if it does there's a procedure for flagging this up [16].

Now, report stage normally means any MP can propose amendments. But like how the power of committees to amend these bills is circumscribed to prevent injustices, so is the power of the House as a whole, by the interaction of Standing Order No. 75 (so, public) [17]
Upon the consideration of a bill on report no amendment which could not have been proposed in committee without an instruction from the House may be proposed unless it has been authorised by a resolution of the House.
and Standing Order 175 (discussed in the previous article). In addition, amendments by the promoters, for example to correct an infelicity or to give effect to an undertaking (where it is simple enough to not require re-commitment) are subject to a notice period by Standing Order 204
When it is intended by the promoters to offer any clause or to propose any amendment on the consideration of any private bill ordered to lie upon the table, or any verbal amendment on the third reading of any private bill, not less than one clear day's notice thereof shall be given to the clerks in the Private Bill Office.
and to the somewhat confusing on first glance (but obvious once you think about it) requirements of Standing Order 182
If the Chairman of Ways and Means informs the House or signifies in writing to the Speaker that, in his opinion, a clause or amendment intended to be proposed by the promoters on the consideration of a private bill ordered to lie upon the table is such that it ought not to be entertained by the House without referring the same to the Standing Orders Committee, the clause or amendment shall stand referred to that committee, and no further proceeding shall be had in relation thereto until the report of that committee is brought up.
Effectively, if there is some potential injustice to a party affected by the bill by an amendment, the Standing Orders Committee (remember them?) will investigate it and decide what to do, as stipulated by Standing Order 107 (there truly is a Private Business Standing Order for all solemnities)
When any clause or amendment proposed on the consideration of any private bill ordered to lie upon the table stands referred to the Standing Orders Committee, it shall report to the House whether or not the clause or amendment is such as may properly be adopted by the House or whether the bill should be recommitted.
In addition, before this can even occur the promoters must pay to have the bill printed (if it was amended) per Standing Order 179
Every private bill, as amended in committee, shall be printed at the expense of the promoters and copies thereof delivered to the Vote Office for the use of members of the House, not less than three clear days before the consideration of such bill; and, in the case of a bill originating in this House, a copy thereof as so amended, printed and covered in like manner as the House copy deposited under Standing Order 163 (Presentation of Bills), shall be deposited in the Private Bill Office, and shall become the House copy in lieu of the copy deposited under the said standing order.
And this printed bill must be examined to check it matches the one signed by the Committee Chairman, per Standing Order 203
The House copy of every private bill printed as amended in committee and deposited under the provisions of Standing Order 179 (Printing of bill as amended in committee) in the Private Bill Office shall be examined with the committee bill by the clerks of that office, and the examining clerks shall endorse thereon a certificate of such examination
Oh, and by Standing Order 180, one needs to send it to any government departments who were originally sent the bill as introduced,
Not less than three clear days before the consideration of a private bill ordered to lie upon the table, a copy of the bill as amended in committee shall be deposited at every department or office at which it was deposited under Standing Order 39 (Deposit of copies of bills at Treasury and other public departments, etc.) or Standing Order 232 (Deposit of copies of substituted bill at public departments, etc.) or would be required to be deposited under those orders if it has been originally introduced as amended in committee.
One peculiarity of the procedure on Private Bills is that the House must first resolve
That the Bill, as amended, be now considered.
Formerly, this was the case for Public Bills too, but this extra step was eliminated by Standing Order No. 72 (remember, public) on 27th November 1882 [18]
When the order of the day for the consideration of a bill, as amended in a committee of the whole House, has been read, the House shall proceed to consider the same without question put, unless the Member in charge thereof nominates a future day for its consideration or a motion shall be made to re-commit the bill in whole or in part.
This will appear at the usual Unopposed Private Business time before Questions, and as usual if opposed will need to be stood over, possibly until a time for Opposed Private Business is named. If not opposed, amendments can also be taken "on the nod" at the unopposed session, being moved ad seriatim by the Chairman of Ways and Means.

Because we can not be free of peculiarities, if a Private Bill does get set down for Opposed Private Business, the question above is actually not put as set out in Standing Order 204A
When an order of the day has been read for the consideration or further consideration, as amended, of a private bill set down by direction of the Chairman of Ways and Means at a time three hours before the moment of interruption, the question, That the bill, as amended, be now considered (or be now further considered) shall not be put: but (unless the Chairman of Ways and Means names a future day for the consideration or further consideration of the bill, or a motion is made to recommit the bill in whole or in part), the House- 
(a)  shall forthwith proceed to consider any amendments proposed on consideration of the bill which have been selected by the Speaker; and 
(b)  may, if there are no such amendments or when the amendments have been disposed of, proceed to the third reading of the Bill, notwithstanding the provisions of Standing Order 205 (Notice of third reading).
That is, the bill essentially proceeds as if it were a public bill without a timetable motion of any kind. Standing Order 205 will become important momentarily. In the event the bill is amended on Consideration, in the same way as the Committee Chairman would have endorsed these on the bill and signed it, a clerk does likewise by Standing Order 206,
The amendments (if any) which are made on the consideration of any private bill ordered to lie upon the table, and on the third reading of any private bill, shall be entered by one of the clerks in the Private Bill Office upon the House copy of the bill as amended in committee; which clerk shall sign the said copy so amended, in order to its being deposited and preserved in the said office.

Third Reading

Except for a bill which was opposed on Consideration, where Third Reading can be taken immediately after, Standing Order 205 requires further notice be given to cause this
Subject to the provisions of Standing Order 204A (Opposed business (consideration and third reading)), not less than one clear day's notice, in writing, shall be given by the agent for the bill to the clerks in the Private Bill Office, of the day proposed for the third reading of a private bill; and no such notice shall be given until the day after that on which the bill has been ordered to be read the third time.
And as usual this will appear in due course in unopposed Private Business. If opposed it would, as usual, need to be set down in an opposed session to be disposed of, otherwise, modulo a small number of caveats, it passes on the nod.

First, Queen's Consent [19] if necessary needs to signified before the question is put that the bill be read a Third Time. Like a public bill, lack of consent is fatal and the bill can not proceed.

It is a little know fact that it actually remains theoretically possible to move amendments on Third Reading to both Public and Private Bills. For the former, this is regulated by Standing Order No. 77, the first paragraph of which (the second doesn't matter here, being concerned with bills brought in on Ways and Means Resolutions), adopted on 21st July 1856 [20], provides that
No amendments, not being merely verbal, shall be made to any bill on the third reading.
And for the latter, identical provision is provided for by Standing Order 184, viz.
No amendments, not being merely verbal, shall be made to any private bill on the third reading.
This Standing Order was also made on 21st July 1856, but unlike No. 77 has not subsequently had a second paragraph annexed to it. [21]

As to what is a "verbal" amendment, we find also on that same day in 1856 in Hansard this exchange, [22]
SIR HENRY WILLOUGHBY: said, he would beg to ask what was to constitute a "verbal" Amendment?
COLONEL WILSON PATTEN: said, the Committee intended by that term anything which would make the least alteration in the meaning of a Bill. The Committee had only determined by the casting vote of the chairman to admit of any alterations at all; but it was thought that cases might arise in which there might be some little inaccuracies which it would be desirable to correct. He would beg at the same time to suggest that this alteration should not come into operation till next Session.
Anyway, broadly assuming it is in order at all, verbal amendments work like amendments on consideration, needing to not contravene the Standing Orders nor be out of scope and so on, and being entered in manuscript on the House copy of the bill by the clerks.

The last "verbal" amendment to a private bill was in 1995; and the last attempt to so amend a public bill seems to have been in 1989 [23].

As usual, in the Lords it remains necessary to also resolve
That the bill do now pass
Finally (this could obviously not be the end of the process) two further things must occur. First, another examination as required by Standing Order 207, viz.
The copy of every private bill after it has been printed fair, deposited in the Private Bill Office under Standing Order 185 (Printing of bill after third reading) shall, before the same is sent to the House of Lords, be examined by the clerks in the said office with the bill as read the third time, and the examining clerks shall endorse thereon a certificate of such examination.
after it has been printed at your expense as required by the cited Standing Order 185 (I told you this wasn't cheap), viz.
Every private bill originating in this House, after it has been read the third time, shall be printed fair at the expense of the parties applying for the same; and a copy thereof, printed and covered in like manner as the House copy, shall be deposited in the Private Bill Office, and shall be the copy of the bill sent to the House of Lords.
Secondly, as per the Table of Fees (see previous article) you now owe the House of Commons £ 4,000 for the privilege of having made it this far (not cheap, see!)

Ending Notes

And there we have it. We are, amazingly, only half way through the actual process, although since the procedure in the second [24] House is so similar, next time we can describe it very succinctly.

Which means we'll have time to consider odder and stranger things

As always, corrigenda welcome. 

[0] "honest"!
[1] Including the elephant of elephants in the room: Hybrid Bills.
[2] Actually an ecclesiastical law term, but I like it
[3] Implicit here is that praying against a clause includes praying to have the clause modified so it no longer adversely affects the petitioner. It is rather the same thing.
[4] As before, this is a reference to the Commons Private Business Standing Orders (the Public Business ones have a "No. 139" in them); the Lords PBSOs are broadly the same but differ in various ways and often have slightly adrift numbering. The few places where the differences matter will be noted assuming I remember them.
[5] At paragraph 45.19, following a report of Joint Committee in 1955.
[6] More on these later
[7] I assume that means only barristers, but shrug
[8] I like Latin.
[9] Erskine May has a detailed exposition on all the corner cases, including the fantastically complicated situation where the promoters are minded to agree an amendment in favour of a petitioner, then someone new objects to that amendment and wants the bill left as-is.
[10] Obviously a petition against the preamble could prompt this, but it can also be the result of one against a particular clause if it breaks the bill in some way, or even the Committee's decision sua sponte.
[11] And here lies a point of difference with the Lords. In the upper House, the Lord Chairman of Committees is empowered by (Lords) Standing Order 130 to determine any dispute under such an undertaking (as Lord Brabazon of Tara did concerning an undertaking from the Secretary of State to EWS on the Channel Tunnel Rail Link Act 1996). No provision is made in the Commons Standing Orders for this; one assumes it would need to be petitioned for and referred to a Select Committee for determination, and that a breach of an undertaking is a Contempt of Parliament; but Erskine May stands silent on this apparently important point. That being said, it appears that these undertakings are essentially never broken.
[12] There may be costs penalties for not so withdrawing in the face of an obviously proper petition, vide infra.
[13] Alastair Lewis was Parliamentary Agent for the Company; the Chairman, who comprised the total voting membership of the Committee, was Lord McFall of Alcuith, the Senior Deputy Speaker, and thereby Chairman of Committees, and he was joined by his Counsel and another Lords Clerk; initial numbers are paragraph numbers from the corrected transcript. The Commons proof is similar but I had this one slightly more handy.
[14] That is the Committee, Unopposed or Opposed, can't simply ignore the bill and hope it will go away if the promoters desire to proceed.
[15] Unless totally unamended, per Standing Order 178 where instead it shall proceed directly to Third Reading.
[16] However, knowing the shear volume of Private Bills in the 19th century it is entirely plausible by mere inadvertence this could happen from time to time.
[17] The cognate power in the Lords is somewhat less powerful since there technically the House is always master of its own procedure; but since there is no report stage there, and the Lords generally only accept truly uncontroversial amendments on Third Reading, it is unlikely to be an issue.
[18] Commons Hansard, vol. 275, col. 142 or thereabouts for the final approval thereof; Commons Hansard, vol. 275, col. 62 for the approval of the underlying resolution 57-27.
[19] And possibly Prince of Wales' Consent
[20] Commons Hansard, vol. 143, col. 1104 ish
[21] I enjoyed this historical oddity more than it is normal to enjoy anything.
[22] Sir Henry Pollard Willoughby, the third Baronet Willoughby of Baldon House, represented Evesham at the time, having previously represented Newcastle-Under-Lyme, and Yarmouth (the one on the Isle of Wight, not the Great one in Yarmouth); Colonel John Wilson-Patten, as he then was, was MP for North Lancashire, having represented Lancashire before the Reform Act; he was later Chancellor of the Duchy of Lancaster and Chief Secretary for Ireland before being called up to the House of Peers as the Lord Winmarleigh.
[23] Citation needed for both; I forgot to write it down earlier, but they're both somewhere in Erskine May.
[24] This isn't a Lords/Commons thing, in both Houses, when they go second the procedure has a few necessary differences to when they go first. Helpfully both Houses are essentially identically different in this case!

Friday, 20 December 2019

Private Legislation, Part the First


There is a little known, though historically significant, class of Parliamentary Bill of which in the Fifty-Eighth Parliament there are currently twice as many pending as the other kind [1].

In this article we will consider the process of getting a Private Act passed, up to the point at which the Opposed Bill Committee (or Unopposed Bill Committee) is about to sit. That sounds like a very brief period of time, but, amazingly, it requires a whole blog post just to get that far!

We will therefore go on a little tour involving petitions, examinations, more petitions, the Committee of Selection, the Standing Orders Committee, the Court of Referees, the Unopposed Bill Committee, and Select Committees on Opposed Bills. And some proceedings in the Chamber too...

In a subsequent post, probably on Monday, we will go further - hopefully all the way to Royal Assent (but no guarantees). A bit like the London County Council (General Powers) Bill in 1915, an instruction has been given to divide this blog post :-)


Types of Bills

There are actually four types of Bills (which go on to produce three types of Acts, it would be too simple for it to line up exactly).

The Bills readers will be most used to, for example the European Union (Withdrawal Agreement) Bill which is being debated as I proof read this, is the public bill. These produce Public General Acts, which are laws that affect the public at large, or the state in general, or similar.

The second category is the private bill. These are what this article (well and the next kind too) is about. Promoted by private individuals or organisations to change the law in so far as it affects that individual, they have a bespoke process to ensure the rights of others are taken in to account. These ultimately end up as private Acts [2]

Then we have the personal bill. Really just a sub-type of the private bill, these affect effectively one or two individuals only. Historically these were surprisingly common, the last was the George Donald Evans and Deborah Jane Evans (Marriage Enabling) Bill, an example of a Bill to permit marriage within a prohibited degree of consanguinuity or affinity [3]. These ultimately become personal Acts [4]

The final category is the hybrid bill. These are public bills which have unusually specific effects on a subset of individuals and organisations and therefore proceed as both a public bill and a private bill, with necessary adaptions of both processes. The Channel Tunnel, Crossrail, and HS2 were and are being proceeded with this way (though the HS2 phase 2B bill has yet to be revived in this Parliament). These ultimately become Public General Acts and at the end look identical to all other public Acts.

Public General Acts are numbered with upright Arabic numeral chapter numbers, e.g. the European Union (Withdrawal) Act 2018 is "2018 c. 16", being the sixteenth Public General Act passed that year. Private Acts are numbered with Roman numeral chapter numbers, e.g. the Haberdashers' Aske's Charity Act 2016 is "2016 c. ii". Finally, personal Acts (which are invariably not printed) use italic Arabic numerals, so the George Donald Evans and Deborah Jane Evans (Marriage Enabling) Act 1987 is "1987 c. 1".

Confusingly, we note (and ignore) that section 3 of the Interpretation Act 1978 provides that "Every Act is a public Act to be judicially noticed as such, unless the contrary is expressly provided by the Act."

So, you want a Private Bill?

In parallel with the normal Standing Orders of both Houses - called formally the Public Business Standing Orders - there are a set of Private Business Standing Orders. These can be teased apart in the Commons thusly: the Public Business SOs are invariably cited as "Standing Order No. 9", whereas the Private Business SOs are "Standing Order 9". This will be important as we continue. [5]

The first step to getting your private bill is to deposit a petition for it. These need to be in a specific form, and need to pray that Parliament give you your bill, as required by Standing Order 2
No private bill shall be presented to the House unless a petition for the same, headed by the short title of the bill and signed by the parties, being promoters of the bill, or some of them, has been previously presented to the House, with a printed copy of the proposed bill annexed.
But you can't just rock up any day and present your petition. Standing Order 2A provides that
Every petition for a private bill shall be presented to the House by being deposited in the Private Bill Office.
No such petition shall be received after 27th November (or if that day is a Saturday or a Sunday, the first Monday following that day) unless it has been endorsed by the Chairman of Ways and Means.
So you need to get in on time - and your window for this year has passed. We also see the first reference here to the Chairman of Ways and Means (in the Lords the same duties are undertaken by the Lord Chairman of Committees). As well as being the most senior of the three Deputy Speakers, the Chairman also has specific responsibility relating to private legislation, which we will return to as it naturally arises.

So far so good. However, this isn't cheap. Just to get your bill read a First Time there is a fee of  £ 4,000 [6]. And it might not even get that far!

The Examination

Because private legislation seeks to confer rights in deviation from the general law, the promoters of them have specific duties. Some of these are quite esoteric, some obvious common sense, and some a mix of the two. Unsurprisingly for a process of great ancienty, it has its own quirks to. These are covered in Standing Orders 4 to 47 (yep, forty-three of them!), and include requirements that
  • notice be given of the bill in newspapers in the area the bill will affect, per Standing Order 10, by 11th December
  • notice be given to the owner of any land proposed to be compulsoraily acquired, per Standing Order 13, by 5th December
  • notice be given to anyone who owns or occupies the proposed frontage of a tramway [7], per Standing Order 14, by the same date
  • notice be given to mill owners where water is to be abstracted, per Standing Order 16, which I will include verbatim because it is one of my favourites:
On or before 5th December in the case of a bill whereby it is proposed to authorise the impounding of the waters of, or the abstraction of water from, any stream at a point at which the stream is not navigable, notice in writing of the proposal shall be given to the owner, lessee, and occupier of each mill, factory or other work using the waters of the stream at any point within a distance, to be measured along the course of the stream, of 32 kilometres below the point at which the water is intended to be impounded or abstracted, unless, within a less distance then 32 kilometres, the waters flow into or unite with a navigable stream, and then only to the owner, lessee, and occupier of each such mill, factory or other work as aforesaid which is situate between the said point and the point at which the waters of the stream flow into or unite with the navigable stream; and the notice shall state the name (if any) by which the stream is known at the point at which the water is intended to be impounded or abstracted, and also the district in England, London borough or county or county borough in Wales, and the parish or community, in which such point is situate, and the time and place of deposit of plans, sections, and books of reference with the proper officers of councils of counties, metropolitan districts, unitary districts or London boroughs or (in Wales) counties or county boroughs.
But beware, Standing Order 24 says giving notice on a Sunday is invalid.

So, you've given all your notices, and deposited plans if necessary as required by Standing Orders 26 to 37A, and you've sent copies of the bill to everyone required by Standing Orders 38 to 44, and you've done the things Standings Orders 45, 46, and 47 require. Now what?

Now the Examiners will check you've done it correctly. This is by way of a hearing before one or both of the Examiners (each House appoints one, I think historically there were multiple, but today it seems to usually be the Counsel to the Speaker and the Counsel to the Lord Chairman wearing different hats). These are appointed pursuant to Standing Order 69, viz.
There shall be one or more officers of this House, to be called "The Examiners of Petitions for Private Bills," who shall be appointed by the Speaker.
Their duties are set out by Standing Order 70 as being
Every petition for a private bill shall stand referred to the Examiners and the Examiner shall report to the House whether Standing Orders 4 (Contents of notice) to 59 (Cross sections of roads, etc.), so far as applicable, have or have not been complied with; and, when they have not been complied with, he shall also report to the House the facts upon which his decision is founded, and any special circumstances connected with the case.
(it is also possible for the House to refer public bills to the Examiners on a case by case basis too)

Standing Order 71 says that the Examination must occur on 18th December
The examination of the petitions for private bills which have been presented on or before 27th November shall commence on 18th December or, if that day is a Saturday or a Sunday, on the first Monday following that day.
but, I think because originally that date was not actually fixed, Standing Order 72 also requires the Examiners to give notice of the date of the Examination, viz.
The Examiner shall give not less than seven clear days' notice in the Private Bill Office of the day appointed for the examination of each petition for a bill; and if the promoters do not appear at the time when a petition comes on to be heard, he shall strike it off the General List of Petitions and shall not re-insert it except by order of the House.
Notice that sanction: woe betide any promoter who doesn't appear when called!

At the Examination, proof on oath needs to be provided that the Standing Orders have been complied with, including submitted examples of newspaper advertisements and so on. Now, if you are lucky your bill will pass this stage and proceed on to First Reading. But what if it doesn't? What if, for example, you gave notice to a mill owner on 6th December or missed that one that was 31,999 metres away? [8]

The Standing Orders Committee

Standing Order 103 provides (in part)
There shall be a committee, to be designated "The Standing Orders Committee," consisting of the Chairman of Ways and Means (who, when present, shall be ex officio chairman of the committee), the Deputy Chairmen of Ways and Means, and eight members nominated by the Committee of Selection; three shall be a quorum, and the committee shall have the assistance of the Counsel to the Speaker.
And Standing Order 104 provides (in part) that
All reports from the Examiner in which he has reported that the standing orders have not been complied with shall be referred to the Standing Orders Committee; and that committee shall report to the House whether such standing orders ought or ought not to be dispensed with, and whether in its opinion the parties should be permitted to proceed with their bill, or any portion thereof, and upon what terms and conditions, if any.
So you can argue your case here. If the Committee agree with you, perhaps by agreeing to change the petitioning period (see below) for your neglected mill owner or similar, then a minute entry is made in the Votes & Proceedings and your bill can proceed. If not, try again next year!

Standing Orders 105, 106, and 107 also provide for various other requests for rules to be waived (e.g. if you didn't attend at the Examination) to stand referred to the Committee.

First Reading

This, thankfully, is a formality. Well once one thing is done, viz. we need to decide which House your bill will begin in. And this isn't up to you, instead, Standing Order 81 says that
The Chairman of Ways and Means or the Counsel to the Speaker shall, on or before 8th January each year, hold a conference with the Chairman of Committees of the House of Lords or with his Counsel for the purpose of determining in which House of Parliament the respective private bills should first be considered.
This actually normally occurs very shortly after the Examination, and indeed has already occurred this year: the Chairmen allocated one bill to each House.

Standing Order 163 requires that presentation and First Reading occur on 21st January or the first sitting day thereafter.

And we are off!

Second Reading

Like all bills, your bill needs to be read a Second Time before any further progress can be made. Standing Order 170 sets down the minimum time period for this
There shall be not less than four clear days between the first and second reading of any private bill.
and then Standing Order 198 effectively imposes a maximum
(1)  Not less than three clear days' notice in writing of the day proposed for the second reading of a private bill shall be given to the clerks in the Private Bill Office by the agent for the bill; and no such notice shall be given until the day after that on which the bill has been ordered to be read a second time.
(2)  In the case of a bill originating in this House, no such notice shall be given for a day later than the eighth day after that on which the bill has been read the first time:
  Provided that when the House has resolved to adjourn to a day beyond such eighth day notice for the second reading may be given for the day to which the House has adjourned or the following day.
Second Reading, indeed most Chamber proceedings on private bills in the Commons, are normally taken after prayers "on the nod", as provided for by Standing Order No. 20 ("Time for taking Private Business"). However, if objected to, the Chairman of Ways and Means can either simply nominate another "on the nod" session and try again or can direct that proceedings be taken for three hours, starting at the times specified in Standing Order No. 20 (4), suspending the public business then underway.

So, if MPs object to your bill, you need to find someone to defend it in the Chamber, and then coordinate with the Chairman and with the Government Business Managers to get it debated.

Rather than simply shouting object, recalcitrant MPs can instead per Standing Order No. 20 (2) put down a "blocking amendment" providing they renew it every seven days.

(The procedure in the Lords is quite different and proceeds more consensually)

Committees

Let's assume your bill survived the Commons thus far. Now, here we meet a fork in the road? Remember all those notices you had to send. Well, the people you sent them too might object to your bill (or parts of it, or want changes). Perhaps that mill owner has an issue with you appropriating his water?

Well, Standing Order 171A provides (in part) that they have until 30th January to get their objections in [9].
Every petition against a private bill originating in this House to which paragraph (1) of Standing Order 163 (Presentation of bills) applies, and which is not a bill the examination of the petition for which has been adjourned until after 20th January, shall be presented on or before 30th January; and every petition against any other private bill shall be presented not later than the tenth day after the first reading of the bill or, if the House is not sitting on that day, on or before the next day on which the House sits.
This happens in parallel with the First Reading process, and in theory could occur in parallel with Second Reading too.

If there were no petitions then, unless the Chairman of Ways and Means thinks there is something "odd" about your bill it goes to the Unopposed Bills Committee. If there are petitions, the Committee of Selection has to nominate an Opposed Bill Committee to hear them.

We will consider opposed bills first, because the unopposed procedure is much much simpler.

Opposed Bills Committees

The proceedings of Opposed Bill Committees are broadly governed by Standing Orders 120 to 131A, and also a few centuries of established practice and principles. Which means we need to do something else first, naturally.

The Committee of Selection

Before that we need to consider the Committee of Selection though. Although most of us encounter this committee in its role of appointing the Departmental and Domestic Select Committees, no where will one find this committee in the Public Business Standing Orders. Instead, we turn to Standing Orders 109 to 118.

Having been read a Second Time, your bill first stands committed to this committee by Standing Order 109
There shall be a committee, to be called the Committee of Selection, consisting of nine Members, of whom three shall be a quorum: and every private bill on committal shall stand referred to the committee.
Dating back to the era of hundreds of railway bills and so on, the Committee has the power under Standing Order 110 to group bills so one committee can process a group of similar measures. Unsurprisingly, this has fallen into disuse. [10]

Under Standing Order 111, the Committee must appoint a Select Committee of four members, none of whom have an interest in the matter, to consider the bill and commit it to them. Under Standing Order 113 it also sets the date of the first meeting of the Opposed Bill Committee (after which the committee regulates its own procedure, broadly).

Opposed Bills Committees (take two!)

Four MPs have been appointed. The first on the "list" becomes the Chairman of the Opposed Bill Committee. Off we go!

Because of their pseudo-judicial nature, these Select Committees have some peculiarities. For one, no MP can sit on one without completing the declaration, contained in Standing Order 120, viz.
I,  having been selected by the Committee of Selection to serve as a member of the Committee on the.........................Bill or on Group.........................of Private Bills, hereby declare, that I have no personal or constituency interest in the said bill or any bill included in the said group; that I recognise my obligation to attend every meeting of the Committee; and that I will never vote on any question which may arise without having duly heard and attended to the evidence relating thereto.
Secondly, the quorum of such a Select Committee is three, i.e. the absence of more than a single member prevents a sitting, provisions for which are contained in Standing Order 121.

Standing Order 123 provides for certain Opposed Bill Committees to have the assistance of the Counsel to the Speaker, namely when
In the case of an opposed bill promoted by a local authority containing clauses by which it is proposed to create powers relating to police, sanitary or other local government matters in conflict with, deviation from, or excess of, the provisions of the general law, the committee to whom the bill is referred shall, when considering such clauses as aforesaid, have the assistance of the Counsel to the Speaker.
Standing Order 125 requires the Select Committee to report to the House if for any reason it isn't sitting on a day when the House sits,
Every committee on an opposed private bill shall report to the House the cause of any adjournment over any day on which the House is to sit.
Standing Order 128 prohibits the Committee from considering anything not in a proper petition, which was probably once necessary in the days of multitudinous private legislation to preserve everyone's sanity, viz.
No petition against a private bill shall be taken into consideration by the committee on the bill, which does not distinctly specify the ground on which the petitioner objects to any of the provisions thereof; and the petitioner shall be heard only on the grounds so stated; and, if it appears to the committee that such grounds are not specified with sufficient accuracy, it may direct that it shall be provided with a more specific statement, in writing, but limited to such grounds of objection so inaccurately specified.
But Standing Order 130 says that it is perfectly proper for a petitioner to raise in the Commons the same issues raised, and disposed of in the Lords (and Lords Private Business Standing Order 112 provides likewise), i.e. everyone gets in principle two bites at the cherry
A petitioner against a bill originating in the House of Lords who has discussed clauses in that House shall not on that account be precluded from opposing the preamble of the bill in this House.
And finally, if for some reason no petitioners turn up, a bit like non-attendance at the Examination, then too bad, and the bill turns back into an unopposed one per Standing Order 131
In the case of any opposed private bill, in which no party has appeared on a petition against the bill or on a petition complaining of amendments as proposed in the filled-up bill, or all parties who have so appeared have withdrawn their opposition before the evidence of the promoters has been commenced, the committee to which the bill has been referred shall forthwith refer back the bill, with a statement of the facts, to the Committee of Selection which shall treat it as an unopposed bill.
Amazingly, even that isn't it. The Select Committee on an Opposed Bill actually has slightly fewer general powers than the Public Bill Committees, since Standing Order No. 65 does not apply to them (though you wouldn't know it from the wording!)
All committees to which bills may be committed or referred for consideration on report shall have power to make such amendments therein as they shall think fit, provided they be relevant to the subject matter of the bill: but if any such amendments shall not be within the long title of the bill, they shall amend the long title accordingly, and report the same specially to the House.
Now, this could be circumvented by an instruction, save that Standing Order 175 prevents instructions which would require a new petitioning period,
Where it is sought by a proposed instruction to authorise or require a committee on a private bill to make an amendment in the bill, the Speaker, if he is of the opinion that the amendment is such that it could not have been inserted except upon petition for additional provision, shall decline to propose the question on the instruction to the House
This is, of course, necessary to do fairness to petitioners.

Anyway, the task of the Select Committee is to methodically consider the petitions and determine whether any are valid (and amend the bill accordingly), then to consider the clauses of the bill itself insofar as they need tweaking (e.g. on grounds of public policy), and then finally to do a curious task called proving the preamble, which we will consider next time.

Locus Standi

This concept isn't actually called locus standi any more, apparently it was confusing. But I can't remember the new name so we're stuck with the Latin [11].

Only petitioners actually affected by the bill can petition. So, for example, while our putative mill owner can object to the abstraction of water, the owner of a mill on a different river can't. Here a slight variance with the Lords procedures develops, but the Commons process is the stranger so we will stick with it. [12]

The promoters can object to any petitioner's locus before the petition is heard. These disputes stand referred to probably the most peculiar of peculiar Commons Committees: the Court of Referees.

Established by Standing Order 89 thusly,
(1)  There shall be a Court of Referees on private bills consisting of the Chairman of Ways and Means (who, when present, shall be ex officio chairman of the court), the Deputy Chairmen of Ways and Means and the Counsel to the Speaker with not less than seven other persons, who shall be members of this House, and shall be appointed by the Speaker for such periods as he may think fit.
(2)  Three referees shall be sufficient to constitute the court.
Standing Order 90 then gives it its functions and powers
The Court of Referees shall decide upon all petitions against private bills, as to the rights of the petitioners to be heard upon such petitions, without prejudice, however, to the power of the committee to which the bill is referred to decide upon any question as to such rights arising incidentally in the course of its proceedings.
Then Standing Orders 91 to 102 cover all sorts of corner cases, ranging from tranways (again) to river authorities and forest conservators.

Any petitioner found not to have locus by the Court is not entitled to be heard by the Select Committee. In the Lords, and on Hybrid Bills in the Commons too, the Select Committee decide these questions themselves. Quite why there is such a baroque procedure for private bills escapes me.

The Unopposed Bill Committee 

This is appointed by the Committee of Selection in a rather curious way (I assume to allow members to be rotated on and off without them losing all will to continue) by Standing Order 111 (2),
(2)  The Committee of Selection shall refer every unopposed bill which stands referred to it to the Committee on Unopposed Bills which shall consist of seven members, namely the Chairman of Ways and Means, the Deputy Chairmen of Ways and Means, and four members selected by the Chairman of Ways and Means from a panel to be appointed by the Committee of Selection at the commencement of every session.
Only three Standing Orders govern these much simpler committees, viz. 132, 133, and 134, and these contain nothing greatly exciting. All in all, the process here is much shorter. The Unopposed Bill Committee essentially just performs the second and third tasks of an Opposed Bill Committee identified above. It is possible for the Committee to reject the bill on grounds of public policy, if the promoter will not accept amendments, or if the preamble is not proved, despite the lack of any 'parties opponent'.

Two curiosities in the Lords practice need to be pointed out though. For one, the "Committee" consists solely of the Lord Chairman of Committees, which is stretching the concept a little. Secondly, in the Lords rather than the Opposed Bill Committees dealing with the general purport of the bill, the bill is subsequently re-referred to the Unopposed Bill Committee (aka the Lord Chairman).

Concluding matters

Amazingly given the comprehensive nature of the above, there are plenty of things I've left out (and we're only half way through the process!). Maybe I'll come back and fill in the gaps one day.

Anyway, stay tuned for the next part of the story: actually dealing with the petition of our disgruntled mill owner!

A final curio

An MP appointed to an Opposed Bill Committee is still required to so serve, even if suspended from the service of the House, per Standing Order No. 45 (2)
Suspension from the service of the House shall not exempt the Member so suspended from serving on any committee for the consideration of a private bill to which he may have been appointed before the suspension.

Colophon

Standing Order extracts are from the 2011 edition of the Private Business Standing Orders, there are subsequent amendments but they're not important to us.

[1] Well at least there was on Friday 20th!
[2] There is a sort of nominal distinction between local Acts and other private legislation, but we will ignore it.
[3] I included that point just so I could write consanguinuity.
[4] Confusingly some old authorities call these private Acts, and call private Acts other things.
[5] The numbering of the PBSOs is broadly the same between both Houses, though there are differences. Henceforth we will use the Commons numbering, mostly because that's what Erskine May does.
[6] It gets remitted to £ 1,000 if you're a charity, as detailed in the Table of Fees annexed to the PBSOs; all future references to fees refer to that table.
[7] For the avoidance of doubt, a tramway is not a tramroad. No I'm not making this up.
[8] For what it is worth, Standing Order 75 provides for persons to submit Memorials to the Examiners "complaining of non-compliance", and if submitted before 17th December Memorialists have a right to be heard by the Examiners. There is also the slightly peculiar Standing Order 76, which I'm ignoring, this is already long enough.
[9] There are some exceptions to this rule, but in general petitioners always have ten days between First Reading and the last day to submit petitions, so our hypothetical mill owner who we forgot to notify on time might be given until 31st January to give him the "same" length of time.
[10] I could imagine it theoretically being used if several local authorities all promote bills to achieve the same thing at the same time.
[11] I am desperately upset by this. Not.
[12] Hybrid bills in the Commons actually follow an analogue of the Lords procedure for reasons that elude me.

Monday, 2 December 2019

Lunar Perigee Syzygy


This article is prompted by a question from @SophieJane96x [1], viz. was the Moon closer on Sunday night because it looked bigger than normal.

Well, the short answer to the question is that actually the Moon was rather farther away on Sunday than it's mean distance. Specifically, the mean Earth-Moon separation is about 385,000 km (that's ca. 239,200 miles for those who like old money, or about 79,733 leagues or so for those who like really old money [2]). At noon on Sunday 1st December it was [3] 396,003 km (246,065 miles, 82,022 leagues, ...) away which is 11,003 km [4] further away.

That being said, the actual answer is, as always with these things, a bit more complex. Because I can imagine when Sophie was looking on Sunday night the moon did appear larger.

But first we need to do a little bit of celestial mechanics.

Also, I promise you that syzygy is a real word, and not a bizarre typo.

The Earth-Moon System

The Moon orbits the Earth [5] on an almost (but not quite!) circular orbit. Technically speaking, it has a mean eccentricity of 0.0549, although due to the interaction of the Earth-Moon-Sun system it can vary between 0.0266 and 0.0762 [6]. By way of comparison, the Earth's orbit around the Sun has an eccentricity of about 0.0167 so the Lunar orbit is rather less circular than the Earth's around the Sun.

An elliptical orbit means the Earth-Moon distance is constantly varying. It transpires that the complex interaction of the Earth-Moon-Sun gravitational system [7] is actually really well modelled. In addition, it also transpires we can measure the distance to the moon at any time to about ±2 mm [8]. Or to put it in political terms, we are more certain where the Moon is than we are what voters think about Brexit.

Because we astronomers like giving names to things, we call the time when the moon is closest to the Earth perigee and when it is furthest away apogee [9]. Exactly how far away the moon is at each of those points varies depending on what the eccentricity is at that time, which you can see in this graph by Darekk2 that I have scurrilously nicked from Wikimedia Commons

If the Moon's distance from the Earth is varying, it stands to reason that how big it appears on the sky (formally: what angle it subtends) will vary too. And you would be correct! The difference in apparent size [10] between apogee and perigee is about 14 %. Again, I have viciously stolen an image from the Commons (this time made by Tomuren) to illustrate this

The important thing to bear in mind here is that while that difference looks like it is obvious, without a reference to compare against it really isn't.

So, yes the apparent size of the Moon does vary due to its orbit. But not by all that much at all.

And, by the way, everything here applies notwithstanding the phase of the Moon. Last night was a waxing crescent according to the widget on my phone [11]

As an aside (because it has nothing to do with size) the Moon is very noticeably brighter at perigee compared to apogee. Why is left as an exercise for the reader (hint, one over r-squared ;-) ).

Syzygy and Supermoons

Ok, so what are these 'supermoon' things we see in the press every now and then? And what's that weird vowel-free word?

Well, first off. No real astronomer will use the term supermoon, if only because it's ill-defined. The term was coined by an astrologer [12] [13] to do whatever it is astrologers do. The idea was that a full moon which coincided (or nearly coincided, or whatever) with perigee is in some sense marked and special.

Now, it transpires astronomers do have a name for the exact moment of a full moon. That's that syzygy word. It is basically any orbital configuration where three things are in a line — it comes from the Greek meaning 'yoked together'. Not just the Earth-Moon-Sun, it equally could apply to Sun-Mercury-Mars (which has been observed!). The exact moment of a 100 % full moon is by definition a syzygy. So, if this moment was to also exactly coincide with Lunar perigee, then you would have a syzygy-perigee.

(A new Moon is also a syzygy, but this time the order is Moon-Earth-Sun, and is why Solar [C1] eclipses can only occur at new Moons)

Which would be spectacular in the sense of being an unusual event (the woolier astrological definition of supermoon occurs a few time a year), and it would be (as hinted above) brighter than your garden variety full moon. And it would be 14 % bigger than the 'average' one.

But that's probably still not why anyone would have thought the Moon was big last night. After all, last night was neither perigee (it's only four days from apogee, actually), and it clearly wasn't a syzygy.

And just for the avoidance of doubt: the Moon being at perigee, or syzygy, or in Ares, or none of these makes no difference whatsoever. Save that obviously a less full Moon causes darker nights. That bits real (but astrologers don't seem to talk about it, oddly)

The Moon Illusion

Apparently the ancient astronomers knew about this phenomenon, and it was also recounted by Immanuel Kant. But what is it?

Broadly speaking, all things being equal, an observer perceives the Moon, when it is low in the sky (i.e. close to the horizon) as being larger than when at zenith (the highest up it gets). As the name suggests, this is entirely an illusion, a fact which one can trivially confirm with a camera. The apparent size of the moon doesn't perceptibly change over the course of a night [14].

We astronomers may have measured the distance to the moon to within two millimetres, but the psychology of human perception is not really our thing. So why this happens is a little bit unclear.

According to Wikipedia (which I trust here because, quite frankly, I know nothing more than "this thing happens"), there are a few competing ideas. The first seems to be called the "apparent distance hypothesis" [15] To explain this, let's imagine a cloud approaching from the horizon [16] (in daylight so we can see it for the moment). When it is just over the horizon, the cloud, no matter its actual size, appears small. As it approaches and rises overhead, it appears to get bigger (it's apparent size increases), reaching a maximum overhead (at zenith) before then decreasing in size as it retreats. 

The argument then goes that the human brain is so used to this phenomena, that when an object like the Moon — which as we have established subtends the same angle all night — moves across the sky, the brain assumes it must larger on the horizon and smaller at zenith. Just like a cloud would behave. [17]

An alternative explanation is the "relative size hypothesis". This says, simply, that when low on the horizon one has lots of reference points (all of which are fairly small) to compare the Moon against, whereas at zenith it is surrounding by a whole lot of nothing. Consequently one perceives the size as changing. 

Personally I like the first explanation. Either way, the take-home message here is that if you see the Moon in the sky and think "gosh it's big", it's almost certainly an illusion.

Why is it red?

Why are sunsets sometimes red? No, seriously, you're asking the same question. Now, Rayleigh scattering is a bit beyond this blog post, but that's the key thing. There is bit of an inversion between an 'ordinary' moon low in the sky and a lunar eclipse, which we'll come to in a moment.

The ultra simple explanation is that as light passes through the atmosphere it is scattered, and the more it goes through (there's some stuff about angles here that I am entirely ignoring ) the more it is scattered. So blue light scatters first (hence the sky is blue), and red light last (so that's what's left when everything else is gone) [18].

So, when the Moon is low in the sky, like the Sun at sunset the light which reflects off it then has to pass through an awful lot of atmosphere (at a steep angle, but we'll park that) to get to you, hence red.

Now, for a lunar eclipse — which, by the way, is an example of a syzygy! — the Moon is always going to be pretty high in the sky, so why is it red? Well, when the Moon is perfectly in the Earth's shadow, the only light hitting it comes via the atmosphere, and is therefore already red. It then reflects and comes back down to you.

Magic! And none of this psuedo-scientific 'blood moon' nonsense.

What about 'Harvest Moons'?

Just a name for the full moon closest to the Autumnal Equinox. Nothing special about it all.

Or 'blue moons'?

Aside from some esoteric corner cases mostly relating to things like volcanic eruptions, which we shall pretend don't exist, this has nothing to do with the colour of the Moon.

The Lunar cycle is ~28 days long (actually it is a little less but who cares), which obviously means that although most months will have one full Moon, and most seasons three; some must have two and four respectively (another way of thinking about this is that some years must have thirteen full moons).

These 'extra' full Moons are called blue moons, and hence the idiomatic phrase "once in a blue moon" to denote an unlikely [19] event.

Or 'black moons'?

The internet tells me this is something to do with having an extra new Moon in a month, but it seems like a modern invention, so let's ignore it and let it die out.


Corrigendum

[C1] Let he who is without error point out the first erratum, yes I originally wrote 'Lunar' here because I wasn't paying attention.

Colophon

I always said I would write something about astronomy, though admittedly I didn't think it would be this.

Hopefully it all made (some?) sense.


[1] Whom I only mention because it will annoy her. Sorry-not-sorry.
[2] Which I make to be 824 million cubits, or about 2 million stadia, or... I'll stop now.
[3] Is there anything Wolfram Alpha doesn't know?
[4] That 3 isn't a typo, though really I should just round it down, it isn't adding anything.
[5] There are probably conspiracy theorists who disagree, they have the disadvantage of not having a PhD in Theoretical Astronomy, and are therefore wrong.
[6] Buried somewhere on this webpage.
[7] And other increasingly exotic stuff like radiation pressure, tidal dissipation, the very small effect of the outer planets, ...
[8] I didn't believe this either when I first read it, but it is true, as this paper nicely explains (Reasenberg, R.D.; et al. "Modeling and Analysis of the APOLLO Lunar Laser Ranging Data".)
[9] These are the two Greek terms (we like Greek) for the apsides of the Moon's orbit around the Earth. The suffix -gee means we're talking about the Earth, then apo- or peri- refer to furthest away or closest, respectively. Cf. perihelion (cloest to the Sun), apocytherion (furthest from Venus), perigalacticon, apochron, ... Anyone caught sticking Greek prefixes on Latin stems will be summarily banned from all astronomical activities.
[10] We say apparent because, obviously, the actual size of the Moon doesn't change.
[11] Of course I have a widget on my phone for this.
[12] Astrology is not a science; astronomy is. Don't insult astronomers by calling them astrologers; please do insult astrologers by calling them charlatans, for they are. (I mean don't really, that's mean, but you get the idea)
[13] If you really must I'm told you can read the original article. Disclaimer: I haven't even clicked this link to check it works, let alone read it.
[14] I say perceptibly intentionally because it is slightly changing due to the elliptical orbit discussed above. But even if you could discern the 14 % apogee-perigee difference, you wouldn't discern the night-to-night difference. So we can approximate it to "doesn't change".
[15] Which Wikipedia attributes to Cleomedes, who is otherwise famous for writing an early astronomy textbook in AD 200, which also is the earliest source for Erastothenes' measurement of the size of the Earth.
[16] This also works with æroplanes, birds, UFOs, very long distance golf balls, cruise missiles, and indeed just about anything that flies.
[17] Some wily soul is going to point out here that the Moon is indeed very slightly closer to the observer at zenith than on the horizon; however, that effect is tiny (I've checked, changes of 1,000 km in six hours are not unusual) compared to the Earth-Moon separation change overnight; which we have already established is imperceptible. Clouds are much lower down, so there the effect is very noticeable.
[18] Real astronomers: yes I know I've left loads of things out, no don't shoot me, I'm trying to explain this without writing a thesis.
[19] I mean, blue moons are not all that unlikely, but idioms be idioms!